BY SAM ALFAN.
Suspended Judge Martin Muya has resisted attempts by the Judicial Service Commission (JSC) to have a petition he has filed, challenging his removal, transferred to the Employment and Labour Relations Court.
The judge through lawyer Philip Nyachoti, argued that only the High Court enjoyed exclusive power to interpret the Constitution, unearth violation of fundamental rights and freedoms and grant redress to aggrieved parties.
Nyachoti said the preliminary objection raised by the JSC was incompetent since Muya’s major complaint was that he was not afforded an opportunity by the commission before it made a recommendation to President Uhuru Kenyatta.
The decision was made by JSC on May 18 asking President Uhuru to appoint a tribunal to investigate his alleged misconduct for delaying judgments in two commercial disputes.
He said the recommendation was made “in a highly biased, suspicious and questionable manner.”
“The investigation, suspension and removal of a Judge is a constitutional process which cannot be considered a dispute between an employer and employee. The High Court is the only available forum for Justice Muya to seek redress for violations of his constitutional rights,” the lawyer submitted before Justice Weldon Korir.
He said the President, through formal notices in the Kenya Gazette, suspended the Judge on half pay and appointed a tribunal to investigate allegations of misconduct against him. He said the Head of State was not acting in his capacity as the Judge’s employer.
The tribunal according to the findings of JSC is to look into misbehavior, breach of the constitution, judicial code of conduct and ethnics pursuant to the complaint lodged by the law firm of Onynkwa and company advocates on 17 August 2017 on behalf of NIC bank limited.
Lawyer Nyachoti told the court that the presentation of the petition and subsequent appointment of the tribunal can take effect any time now hence the urgency of the the application for conservatory orders.
